Sudanese President Omar Bashir visited Kenya yesterday to take part in the celebration of the new Kenyan Constitution. As readers will know, the International Criminal Court (ICC) has issued two arrest warrants for President Bashir in connnection with charges of war crimes, crimes against humanity and genocide. President Bashir’s visit to Kenya is his second visit to an ICC State party. Last month Bashir visited Chad which is also a party to the ICC Statute. Both Kenya and Chad invited Bashir and both refused to comply with the ICC arrest warrants which request State parties to arrest and surrender Bashir. ICC Pre Trial Chamber I, which issued the arrest warrants, issued decisions (see here and here) yesterday informing the United Nations Security Council and the ICC Assembly of State Parties of the visits by Bashir “in order for them to take any measure they may deem appropriate”. In the ICC decision regarding Kenya, the Chamber stated that:

“the Republic of Kenya has a clear obligation to cooperate with the Court in relation to the enforcement of such warrants of arrest, which stems both from the United Nations Security Council Resolution 1593(2005), whereby the United Nations Security Council “urge[d] all States and concerned regional and other international organizations to cooperate fully” with the Court, and from article 87 of the Statute of the Court, to which the Republic of Kenya is a State Party” [The decision with respect to Chad has a similar paragraph except that, interestingly, that decision only states that Chad has an obligation to cooperate – with the word “clear” being omitted from the first line of the paragraph.]

ICC judges have to take a large share of the blame for this situation. Despite the assertion that Kenya has a clear obligation to arrest President Bashir, the matter is by no means clear. As is well known, a decent argument can be made that Bashir, being a serving head of State is immune from arrest in other States (see the article by Professor Paola Gaeta which makes this case). I have argued the opposite in an article I wrote last year (see this post which refers to both articles). Despite very reasonable doubts and despite the importance of the issue, ICC judges in the Appeals and Pre-trial Chamber have refused to address the immunity question and to clarify matters (see previous post).

Bashir’s visits to two African States must been seen against the background of the African Union’s (AU) continuing call for African States not to cooperate with the ICC with respect to the Bashir case. African States are disappointed that the UN Security Council has not taken action on the AU’s request for a deferral of the Bashir prosecution under Article 16 of the ICC Statute. In July of this year, the AU Assembly (of heads of States), meeting in Kampala, Uganda, just weeks after the ICC Review Conference met there:

“REITERATE[D] its Decision that AU Member States shall not cooperate with the ICC in the arrest and surrender of President El-Bashir of The Sudan” (Assembly/AU/Dec. 296 (XV),see here, at p. 24)

This year’s AU decision was implicitly referring back to a decision taken in 2009 by the AU Assembly where it:

“DECIDES that in view of the fact that the request by the African Union has never been acted upon, the AU Member States shall not cooperate pursuant to the provisions of Article 98 of the Rome Statute of the ICC relating to immunities, for the arrest and surrender of President Omar El Bashir of The Sudan” Assembly/AU/Dec. 245 (XIII),here at p. 9)

It is ironic that although the 2009 decision was not supported by a number of African States the only one to formally enter a reservation to that decision (something rather rare in AU politics) was Chad. As it happened Chad was the first ICC party that Bashir visited.

But what is also interesting is that the AU’s call for non-cooperation bases itself on Bashir’s immunity. Thus the AU is asserting that a refusal to arrest Bashir would be in accordance with the ICC statute and in particular with Article 98. Before issuing decisions in which it asserts that there is a “clear”obligation to the contrary, the ICC ought to address the Article 98 issue.

I do not agree that there is reasonable doubt about non-immunity of a sitting head of state or official. I agree that the preamble to the treaty and articles 25 and 27-28 undeniably support jurisdiciton over any person of any status who commits a crime covered in Arts. 6-8 or is otherwise responsible under article 25. There is no immunity for a sitting head of state or official in any international criminal tribunal since the 1474 trial of Peter von Hagenbach, including under the Charters for the IMTs at Nuremberg and for the Far East, the ICTY (see the ruling re: the claim by Milosevic), the ICTR.

[…] South Africa, the AU ultimately rescinded that resolution. But it subsequently declared that, in receiving President Bashir in defiance of their obligations as state parties to the ICC, Chad and Kenya had acted appropriately, and were “implementing […]

Dapo Akande

Dapo Akande is one of the editors of EJIL:Talk!. He is Professor of Public International Law at the University of Oxford and Yamani Fellow of St Peter's College, Oxford. He is Co-Director of the Oxford Institute for Ethics, Law & Armed Conflict, and also of the Oxford Martin Programme on Human Rights for Future Generations. Dapo is a member of the Editorial Boards of the European Journal of International Law and the American Journal of International Law.